The nature of the crime is a fundamental consideration for granting or denying a bail: SC

The nature of the offence is a circumstance which has an important bearing on the grant of bail. The orders of the High Court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted. In the two-judge Bench decision of this Court in Ram Govind Upadhyay v. Sudharshan Singh the nature of the crime was recorded as “one of the basic considerations” which has a bearing on the grant or denial of bail. The considerations which govern the grant of bail were elucidated in the judgment of this Court without attaching an exhaustive nature or character to them. (Para 20).

RAMESH BHAVAN RATHOD V. VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) & ANR.

Criminal Appeal No 422 of 2021.

Decided on April 20, 2021.

Counsel For Appellant: Mr Vinay Navare, Ms Jaikriti S Jadeja

Counsel For Respondent: Mr Nikhil Goel

The two-Judge Bench comprising of Justice Dr Dhananjaya Y Chandrachud and JusticeM R Shah decided the present case. The Supreme Court allowed the appeal, overruling the order of the High court, which granted bail to the accused and ordered them to surrender immediately.

The appellant registered an FIR at 7:30 PM for the incident that took place on 9th May 2020 at 1 PM. The appellant along with his brother and brother-in-law, Akhabali and five other members were returning from their farm when their car was smashed in the front from a tractor driven by one of the Accused. The car was also smashed in the rear by another tractor driven by the other accused which was followed by a car parking right behind the tractor. All the accused then descendant the vehicles with guns, dhariya and knives and assaulted the appellant and the other members present with him. This led to the death of five people. Two country-made guns, two indigenous counterfeit guns, four dhariyas and one wooden stick were retrieved from the site of the offence.

Vikram Heera Makwana (Koli), one of the accused filed a cross FIR, which detailed his side of the story. It was stated in the FIR that Akhabali assaulted the accused first with guns injuring Vikram and his brother. Which resulted in all the co-accused coming down the field with weapons. Akhabhali tried to run on his car but was blocked from both the end with tractors.

He was arrested the following day and presented fake documents for his bail. A regular bail was rejected by the Additional Session Judge. 6 from the 22 accused filed an application in the High Court for bail, the court allowed the application and the bail was granted to every six of them.

Aggrieved by the decision of the High Court, the present appeal has been put forth before the Supreme Court.

The appellant's counsel, Vinay Navare argued that the High Court erred in granting bail and stated that while granting the bail, the Chief Justice only took into account the advocates who appeared on the behalf of the parties, considering it as an “anathema” to criminal jurisprudence. Further stating that since the order was passed under section 493, it is required by the court to give reasons as to why the bail was granted.

Mr Nikhil Goel, learned Counsel appearing on behalf of the accused countered the arguments put forth by the counsel of the appellant and supported the High Court for granting bail to the accused.

The Supreme Court after hearing the arguments from both the parties stated that “The first aspect of the case which stares in the face is the singular absence in the judgment of the High Court to the nature and gravity of the crime. The incident which took place on 9 May 2020 resulted in five homicidal deaths. The nature of the offence is a circumstance which has an important bearing on the grant of bail. The orders of the High Court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted. In the two-judge Bench decision of this Court in Ram Govind Upadhyay v. Sudharshan Singh the nature of the crime was recorded as “one of the basic considerations” which has a bearing on the grant or denial of bail. The considerations which govern the grant of bail were elucidated in the judgment of this Court without attaching an exhaustive nature or character to them”(Para 20).

Furthermore, the court observed and stated that “Our analysis above would therefore lead to the conclusion that there has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths. This is clearly a case where the orders passed by the High Court suffered from a clear perversity.” (para 32).

The Supreme Court concluded its judgment stating that “For the reasons which we have indicated above, we have come to the conclusion that the orders granting bail to the respondent-accused Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17) suffer from a clear perversity. We accordingly allow these appeals and set aside the following orders of the High Court” (Para 41)

The Appeal was allowed

View/Download Judgement : RAMESH BHAVAN RATHOD V. VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) & ANR.

Utkarsh Kumar Jayaswal